LGD 2003 (1) - Editorial
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Dr W Wesley Pue
Professor of Law and Nemetz Chair in Legal History,
University of British Columbia, Canada
wpue@dcnet.com
Editorial
This special issue of the Journal of Law, Social Justice, & Global Development explores themes in postcolonial legal studies. Deliberately clectic, it emerges from a diverse group of scholars who approach matters of postcoloniality and legal studies from a variety of perspectives.
Shared scholarly endeavours such as this one have both immediate and ultimate causes. The ultimate cause of this collection has been an increasing emphasis on matters concerned with colonialism and 'post-colonialism' within legal studies as intellectual currents running between postcolonial studies and legal scholarship have emerged. That the literatures framing this encounter are prolific and diffuse will be apparent from the sources informing the work contributed to this volume. The immediate cause was a scholarly workshop convened (on land long occupied by First Nations peoples) at Manning Park in British Columbia's Cascade Mountains in the spring of 2002 as part of the University of British Columbia's Interdisciplinary Law and Society Programme1. Most of the papers appearing in this volume evolved from papers presented at that workshop.
The spirit of the intellectual encounter between law and colonialism is of necessity interdisciplinary, diverse in perspective, and unbounded. Scholarship in the field does not - should not - fit into overly-neat disciplinary or perspective-bound categories. Individuals drawn to postcolonial legal studies come to the enquiry with variety of motivations and an array of interests. Some seek primarily theoretical understanding, others encounter the postcolonial as part of sustained historical research, and others still feel a compelling sense of urgency to develop practical strategies by which to confront the legacies of colonialism 'on the ground'. Many pursue a more or less mixed method of enquiry and do so from multiple motivations.
The University of Melbourne's Institute for Postcolonial Studies announcement of its own programme in postcolonial legal studies describes the undertaking as follows:
'The series assumes, at its broadest that, as the well-known joke has it, colonialism has not been post-ed anywhere, with Australia, a former British possession, for example, still doubly implicated, as an informal colony of the US and as a power exercising colonial control over indigenous people.
Law was a tool of colonialism, esthetically representing western rationality to native disorder and pragmatically overriding local understandings to suit the needs of the conqueror. It has operated at two levels; as international law it has upheld the interests of the dominant western powers; as the domestic law of the colony it has legitimated the colonists' claims to pre-eminence. The idea that the colonized might use either of these levels of law to claim for their aims an equality with the aims of the colonizer is relatively new, dubious, as we have seen in both land rights litigation and (principally) US foreign aggression. Both the (often unconscious) religious and cultural freight of white law as we are familiar with it, and the conceptual machinery it uses, predispose it to 'reasonable' white, western interests, against the unreasonable demands of the other. Diagnosing this problem is a precondition of its cure….
Discussion should not assume that colonialism oppresses only along ethnic lines. Imperialism, with its emphasis on exclusive forms of sovereignty encouraged the process by which techniques of rule at the periphery could be imported into the metropole, often as a technology of order aimed at class or gender insurgency. The kinds of politics that have re-surfaced in the present in 'clash of civilizations' rhetoric demands produces authoritarianism, so affecting legal rights, but the experience of colonizing can alter the concept of law itself to one in which the process of giving meaning is restricted to the technical expert'2.
The papers published here raise issues of postcolonialism at both the 'international' and the 'domestic' levels. All engage in 'diagnosis' of the colonial legacy, some deigning to speak of 'cure'. Fittingly, this Special Issue also launches a new 'open forum' on 'Modernity, Nation and Empire'. Abdul Paliwala's commentary on that theme is provides a critical reading of Peter Fitzpatrick's Modernism and the Grounds of Law, (2001) with/beside/against a reading of Michael Hardt and Antonio Negri's Empire (2001). The discussion is especially timely given the US's new commitment to 'hard power'. The shift to a modern form of 'gunboat diplomacy', manifest most dramatically to date in the USA occupation of Iraq, opens a new era wherein many discern the emergence of an 'American Empire'.
Patrick Hanafinprovides a careful constitutional 'reading' of Irish citizenship, triangulating Ireland's written constitution, with understandings of constitutionalism dynamically constructed in relation to recent debates about abortion and the much-celebrated 'reburial … in October 2001 of 10 male nationalist freedom fighters who were executed during the War of Independence, between 1919-1921' (Hanafin, p 4). The result, he says, is an Irish constitutionalism constructed from a struggle for national liberation in which 'the citizens of the new state found that their life was to be sacrificed to the ideal of authentic Irish citizenship, one founded on an ascetic Roman Catholic construction of the individual as living for death' (Hanafin, p 3). While the abortion debate revealed that women's roles in society remain fixed to that of mother, the reburial ceremony showed '[t]he terrorists of yesterday are now venerated by the state, while the terrorists of today receive the State's condemnation' (Hanafin, p 8). In the result, the 'sacrificial proto-citizen' provides 'a model for political citizenship in the postcolonial period' (Hanafin, p 9).
Johan van der Waltalso explores post-colonial constitutionalism, albeit in a different context and toward different ends in his 'Blixen's Difference: Horizontal Application of Fundamental Rights and the Resistance to Neo-Colonialism'. Contrasting Belgium King Leopold II's governance of the Congo with Karin Blixen's ownership of a farm ('I had a farm in Africa'), van der Walt discerns an essence of colonialism. The former's possession of Africa, unlike Karin Blixen's, merged public governance and private power:
'The Belgian Congo was ruled by Leopold II, but also possessed by him. This unity or conflation of political power and economic power was the essence of the feudal social system. It was also the essence of colonialism. Colonialism…. constituted an anachronistic continuation of European feudalism' (van der Walt, p 3).
Identifying colonialism/ feudalism in this conflation of political and economic, van der Walt argues that both circumstances where political power becomes subsumed to the pursuit of private goals (through corruption or otherwise) and circumstances where economic power becomes so great as to overwhelm public authority (most obviously, in capital strike) are objectionable. Consequently, he calls for a re-working of the notion of 'horizontal' application of constitutional rights. An idea conventionally understood as involving 'the application of fundamental or constitutional rights to the horizontal relationships between private legal subjects' (van der Walt, p 7), should be reconceptualized. It involves, he says, 'a resistance to feudal hierarchies and the feudal appropriation of the liberty of others, be it by government or the powerful princes of commerce'. This legal resistance, he argues, should be premised on a 'radical understanding of democracy that has its roots in the fundamental horizontality of mortals …' (van der Walt, p 14).
Obijiofor Aginamconfronts colonial legacies injurious to world health in his assessment of 'The Nineteenth Century Colonial Fingerprints on Public Health Diplomacy: A Post-Colonial View'. Pointing to 'the colonial origins of nineteenth-century infectious disease diplomacy bequeathed to present-day public health diplomacy, Aginam argues that this legacy exacerbates the South-North health divide in the relations of nations and peoples in a supposedly post-colonial world' (Aginam, p 3). An historical interpretation of key incidents in the formation of international infectious disease policy, points to the inadequacies of approaches founded on assumptions that the world is divided between 'civilised' and 'uncivilised' spaces that can be effectively shielded from one another. The result of such false assumptions has been action (or, more often, inaction) by the 'North' that consigns millions to sickness that could be avoided if only their problems were not casually dismissed from collective consciousness as the inevitable fate of the 'Other'. Colonialism's legacy leaves us not just with an inhumane global inequality but also with health policies that are ultimately unworkable in the interests of all of the world's inhabitants, even the wealthiest of the 'North'. Globalisation has produced such a scale of human interactions and trade that polices of containment, quarantine, and isolation cannot be workable: '[t]he 'vital interests of the civilized-industrialized countries will best be served if they engage in promoting global health, especially by remedying conditions that are endemic in the 'civilising-developing' world' (Aginam, p 9).
The relevance of issues of colonialism and postcolonialism in North America (bizarrely, often assumed to lie without colonialism) is highlighted by Woo and Findlay's focus on First Nations issues, and by Mawani's careful attention to other manifestations of 'othering' in British Columbia. The centrality of first peoples in so-called 'settler colonies' also forms an important focus in Harris' contribution on Australia.
Renisa Mawanidevelops themes related to health, history, and colonialism, by focusing on discourses of health and race in Canada. Through careful historical research she demonstrates that 'languages of health and hygiene were (and still are) racially coded and have been central to (post)colonial practices of inclusion and exclusion' (Mawani, p 3). Her particular topic is the investigation of a Chinese leper colony established on a small British Columbia island in the decades around the turn of the twentieth century. This case study illustrates both the inevitable spatiality of colonial exercises of power and the central roles of 'race' and 'health' in 'the making of national imaginaries'. Expanding upon Foucauldian insights, Mawani concludes that 'because health is one of several modern key concepts that orders society and structures relationships between self and society as well as self and other, its interrogation is necessary in understanding the ways in which national-racial projects were historically shaped and articulated' (Mawani, p 14).
Grace Woo's article on 'Canada's Forgotten Founders: The Modern Significance of the Haudenosaunee (Iroquois) Application for Membership in the League of Nations' argues that 'if we want to decolonise the future we must first decolonise our understanding of the past' (Woo, p 10). Her work recounts the destruction of the long-standing Haudenosaunee Confederacy in the early twentieth century as British and Canadian collusion distracted the League of Nations as Canada set about occupying Haudenosaunee territory and undermining its governance structures - apparently in contravention of both treaty undertakings and international law. In a common place colonial double play between settler and 'native', 'the first steps in the decolonisation of Canada were accompanied by the final colonisation of the Haudenosaunee people' (Woo, p 10).
Mark Harrisaddresses issues of colonialism and aboriginality in another former British 'settler colony' in his work on 'Mythologising 'Reflections of Squatting in Victoria': Law's Intersection with Colonial Memory'. Starting from the intriguing judicially-expressed notion that lawful title to land once possessed by aboriginal peoples can be 'washed away by the tide of history', Harris explores the a variety of foundational narratives of settler societies. He detects patterns in which crucial sources of information - particularly aboriginal oral histories, some 'expert' testimony, and collective memories expressed in song, amongst others - are devalued in the Australian context in favour of the accounts of colonizers. Remarkably, even settler accounts of known doubtful veracity are accorded a high degree of respect by contemporary Australian courts as they grapple with the questions of where and when and how to recognize 'native' title. The master speaks persuasively, it seems, even when deceased and even when he is known to have lied.
Ian Duncansonrecasts postcolonial legal studies as being as concerned with occidental ordering practices as with the colonized themselves. Noting that the modern west was constructed against an historical backdrop in which the reality of empire was always felt, he argues that 'empire' is central to the production of imperial centres and to the cultural construction of all of their attributes. Empire was, amongst other things, 'a context for the English common law' (Duncanson, p 4). Lessons learned in off-shore colonies came back as law was used to train 'natives everywhere, brown people, working class and female people and children' to conduct themselves as 'reasonable', 'free' citizens (Duncanson, p 12). 'Law' writ large, like western thought more generally, is thoroughly imbricated with its Imperial history.
Finally, Isobel Findlay's 'Working for Postcolonial Legal Studies: Working with the Indigenous Humanities' underlines the importance of education in postcolonial legal studies. She casts issues related to law, social justice, and globalization within the larger frame of the humanities, noting in particular the central engagement of 'law' with the 'textual humanities' and 'with notions of the good and of the just society draw[ing] on cultural, philosophical, and theological traditions widely exported from Europe to its steadily growing overseas possessions' (Findlay, p 3). Recognizing the mutually constitutive effects of law, imperialism, and 'humanities', Findlay argues for an 'indigenous humanities' as a means of opening up 'some institutional and discursive space in the interests of decolonizing legal studies and underlining the value of indigenous knowledge to social justice and global development' (Findlay, p 4) Intriguingly, the 'indigenous humanities' under discussion in this essay is not just an abstract idea, a 'think piece' about something that might be dreamed. Rather, it is simultaneously an intellectual abstraction, a goal, and a very real educational programme undertaken at the University of Saskatchewan. The participants in that educational project:
'aim to dismantle the master's house by reinterpreting and exposing the foundational violences of the traditional humanities (Bhabha) and their complicity in acts of delegitimation and dispossession and by unpacking a 'commitment to humanism' and equality that 'co-exists' with a 'material practice of inequality' and exposing the 'ideologies of justification. . . constructed in law, government, imagination, and popular culture,' as Dara Culhane argues. We do so by rereading treaties and revaluing Aboriginal knowledge and heritage, the authority of the elders and educators, court workers as well as cultural workers … and showing no undue deference to male authorities of any culture' (Findlay, p 8).
'Indigenous humanities', like postcolonial legal studies more generally, promises both a way of reimagining the world, and 'applied' outcomes in the form of cultural knowledges and ways of knowing that 'can usefully address deficits of discourse, understanding, and remedial action' (Findlay, p 8) in courts and other fora dealing with matters such as aboriginal entitlement in Canada or Australia.
The objective of indigenous humanities at the University of Saskatchewan is to 'to move beyond postcolonial theory as forms of fatalism and impossibility to theory as success and the possibility of transformation' (Findlay, p 5).
And that, it seems, is a fitting aspiration for postcolonial legal studies everywhere.
Endnotes
1. As Chair of the University of British Columbia's Interdisciplinary Law and Society seminar series I am grateful to the following postcolonial legal scholars who served on the steering committee for the workshop: Eve Darian Smith, Ian Duncanson, Peter Fitzpatrick, Judith Grbich, Rob McQueen, and Obiora Okafor. Their advice, encouragement, and willing assistance throughout is much appreciated.
2. This programme is convened by Ian Duncanson, Research Associate, Institute for Postcolonial Studies, Melbourne e-mail Ian.Duncanson1@bigpond.com. Information about the work of the Institute can be found at: http://www.ipcs.org.au/about.html .
This Editorial was published on 30 April 2003.
Citation: Pue, W'Editorial', 2003 (1) Law, Social Justice and Global Development.
<http://elj.warwick.ac.uk/global/issue/2003-1/editorial.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_1/editorial/>